t 


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FEDERAL  REGULATION 
OF  QUARANTINE 


J 


y 


BY 


William  E.  Walz, 


DEAN  OF  THE  SCHOOL  OF  LAW,  UNIVERSITY  OF 

MAINE. 


Reprinted  from  Michigan  Law  Review,  Volume  IV,  No.  3 

January,  1906 


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7 


FEDERAL  REGULATION  OF  QUARANTINE 


DURING  the  recent  excitement  in  the  South  caused  by  the 
sudden  appearance  of  yellow  fever  and  the  consequent 
recrudescence  of  the  shotgun  quarantine  an  event  has  happened  that 
might  well  attract  the  attention  of  every  thoughtful  citizen  of  the 
United  States :  the  surrender  of  a  very  essential  part  of  the  police 
power  of  the  State  of  Louisiana  to  the  Public  Health  and  Marine 
Hospital  Service  of  the  Federal  Government,  made  on  the  plea  of 
absolute  necessity  and  on  the  principle  that  self-preservation  is 
nature’s  first  law.  The  Governor  of  the  State  assumed  full 
responsibility  for  this  surrender,  and  he  had,  and  has,  in  this  respect, 
the  unanimous  support  of  the  leading  men  of  his  State,  notably  that 
of  the  well-known  and  deservedly  popular  Senator  S.  D.  McEnery, 
of  New  Orleans.  The  Federal  Government  has  thus  far  conserva¬ 
tively,  successfully,  and  to  the  general  satisfaction  of  the  people 
of  Louisiana,  substantially  exercised  the  same  powers  that  it  exer¬ 
cised  with  such  universal  approbation  in  Havana  when  it  endeavored 
to  eliminate  the  yellow  fever  from  that  city  under  the  sovereign 
and  unrestricted  power  then  held  by  the  United  States  in  Cuba  in 
all  matters  of  civil  and  military  jurisdiction.  The  action  of  the 
Governor  of  Louisiana  has  found,  directly  and  indirectly,  vigorous 
endorsement  beyond  the  limits  of  the  South,  and  one  northern 
Congressman,  Mr.  Frederick  Landis,  of  Indiana,  claiming  that 
nothing  could  be  more  purely  national  than  a  quarantine  law,  has 
recently  declared  that  he  wanted  to  do  “whatever  is  necessary  to  get 
rid  of  mosquitoes  and  the  constitutional  lawyers.”1 

It  is  universally  conceded  that  quarantine  law,  that  is,  laws  pre¬ 
venting  intercourse,  for  a  certain  space  of  time,  on  the  part  of 
persons  infected  or  binder  suspicion  of  infection,  with  others  in 
order  to  prevent  the  spread  of  some  contagious  or  infectious  disease, 
...come  under  that  part  of  the  police  power  which  concerns  the  preser¬ 
vation  of  the  public  health.  It  has  been  established,  by  a  long  series 
of  decisions,  that  the  police  power  belongs  to  the  powers  not  dele¬ 
gated  to  the  United  States  by  the  Constitution  nor  prohibited  by  it 
to  the  States ;  and  is  hence  reserved  to  the  states  respectively,  or  to 
the  people. 

1  The  Times-Denvcrat,  of  New  Orleans,  November  6,  1905. 


—  2  — 


« 


In  determining  whether  a  given  governmental  power  rests  with 
the  Federal  Government  or  with  the  States  we  must  start  with  the 
presumption  that  it  rests  with  the  States  unless  such  power  has  been 
surrendered  by  the  Constitution  to  the  United  States,  either  ex¬ 
pressly  or  by  implication,  and  that  the  States  possess  and  exercise, 
except  as  so  restrained,  the  authority  of  independent  and  sovereign 
states,  having  exclusive  jurisdiction  over  persons  and  things  within 
their  territory.2 

It  is  admitted  that  the  police  power  is  not  expressly  surrendered 
by  the  States,  and  an  examination  of  the  authorities  goes  to  show 
that  there  is  no  adjudicated  case  holding  that  this  power  is  delegated 
to  the  Federal  Government  by  implication. 

The  rule  for  determining  the  existence  of  an  implied  power  is 
given  in  the  Constitution  which  declares  that  the  Congress  shall 
have  power  to  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  all  powers  vested  by  the  Constitution  in 
the  Government  of  the  United  States,  or  in  any  department  or  officer 
thereof.3 

How  this  rule  is  to  be  interpreted  and  applied  Chief  Justice 
Marshall  has  laid  down  in  a  case  that  has  probably  never  been 
excelled  for  felicitous  and  sound  reasoning.  After  showing  the  true 
meaning  of  “necessary’'  and  “proper"  as  used  in  this  part  of  the 
Constitution,  he  sums  up  the  whole  argument  as  to  the  implied 
powers  in  a  single  and  ever  memorable  sentence :  “Let  the  end  be 
legitimate,  let  it  be  within  the  scope  of  the  Constitution,  and  all 
means  which  are  appropriate,  which  are  plainly  adapted  to  that  end, 
which  are  not  prohibited,  but.  consist  with  the  letter  and  spirit  of 
the  Constitution,  are  constitutional.”4 

Following  out  the  reasoning  in  this  case,  five  years  later,  the 
Supreme  Court  of  the  United  States,  referring  to  inspection  laws, 
quarantine  laws,  and  health  laws  of  every  description,  as  well  as  to 
laws  for  regulating  the  internal  commerce  of  a  state,  declared 
expressly  that  “no  direct  general  power  over  these  subjects  is  granted 
to  Congress  and  consequently  they  remain  subject  to  state  legisla¬ 
tion.”5  This  passage  has  been  quoted  with  approval  in  several  later 
decisions.6  It  should  be  noted  in  this  connection  that  if  Congress,  in 
the  fair  and  legitimate  exercise  of  an  undoubted  express  or  implied 
power  granted  to  it  by  the  Constitution,  were  to  pass  laws  indirectly 


2  Ohio  Life  Insurance  Co.  v.  Debolt,  16  How.  416,  at  428;  Pennoyer  v.  Neff,  95  U.  S. 
714,  at  722. 

3  U.  S.  Constitution,  Art.  I,  Section  8,  par.  18. 

4  McCulloch  v.  Maryland,  4  Wheat.  316,  421. 

5  Gibbons  v.  Ogden,  9  Wheat.  1,  203. 

6  City  of  New  York  v.  Miln,  11  Pet.  102,  133;  Gilman  v.  Philadelphia,  3  Wall.  713,  726; 
Slaughter  House  Cases,  16  Wall.  36,  63. 


» 


3  — 


affecting  or  controlling  state  quarantine  laws,  for  instance,  such 
power  exercised  within  those  limits  would  undoubtedly  be  held  as 
coming  within  the  scope  of  constitutional  authority. 

In  City  of  New  York  v.  Miln7  the  court  refers  to  quarantine  and 
health  laws  as  part  of  the  police  power,  and  states  that  this  power 
unquestionably  remains  and  ought  to  remain  with  the  state;  A 
statute  of  the  State  of  New  York  required  of  every  master  of  a  vessel 
arriving  from  a  foreign  port  in  that  of  New  York  City  to  report  the 
names  of  all  his  passengers,  with  certain  particulars  of  their  age, 
occupation,  last  place  of  settlement,  and  place  of  their  birth ;  and  the 
statute  was  held  not  to  be  an  invasion  of  the  exclusive  right  of  Con¬ 
gress  to  regulate  foreign  commerce,  but  a  legitimate  exercise  of  the 
police  power  properly  within  the  control  of  the  State.  Giving  an 
illustration  how  far  the  police  power  of  a  state  may  properly  go,  Mr. 
Justice  S wayne  stated  that  under  such  quarantine  laws  a  vessel 
registered,  or  enrolled  and  licensed,  may  be  stopped  before  entering 
her  port  of  destination,  or  be  afterwards  removed  or  detained  else¬ 
where,  for  an  indefinite  period,  and  that  a  bale  of  goods  upon  which 
duties  have  or  have  not  been  paid,  laden  with  infection,  may  be 
seized  under  ‘'health  laws,”  and,  if  it  could  not  be  purged  of  its 
poison,  might  be  committed  to  the  flames.  “The  inconsistency 
between  the  powers  of  the  state  and  nation  as  thus  exhibited,”  he 
added,  “is  quite  as  great  as  in  the  case  before  us,  but  it  does  not 
necessarily  involve  collision  or  any  other  evil.  None  has  hitherto 
been  found  to  ensue.  The  public  good  is  the  end  and  aim  of  both.”8 
Equally  plain  a  statement  is  found  in  Fertilizing  Company  v. 
Hyde  Park  :  “That  power  [the  police  power]  belonged  to  the  States 
when  the  Federal  Constitution  was  adopted.  They  did  not  surrender 
it,  and  they  all  have  it  now.”9 

In  so  far  as  quarantine  laws  are  the  legitimate  exercise  of  the 
police  power  of  the  different  states  as  applied  to  local  conditions, 
legislation  along  this  line  rests  exclusively  with  the  states,  and  the 
Federal  Government,  in  the  absence  of  any  power  delegated  to  it 
expressly  or  by  implication,  cannot  in  any  way  make  laws  directly 
dealing  with  these  conditions  or  superseding  to  any  degree  this 
power  originally  vested  in  the  states  by  reason  of  their  independent 
sovereignty. 

It  has  been  asked  by  not  a  few  of  the  leading  men  of  the  South : 
If  the  police  power,  so  far  as  it  affects  quarantine  and  health  laws, 
has  not  been  surrendered  to  the  Federal  Government  at  the  time  of 
its  formation,  has  it  not  a  right  to  take  charge  of  the  quarantine 

1  i  r  Pet.  102,  142. 

8  Gilman  v.  Philadelphia,  3  Wall.  713,  730. 

9  Fertilizing  Company  v.  Hyde  Park,  97  U.  S.  659,  66 7. 


4  — 


service  if  asked  to  do  so  by  the  state  legislatures  ?  And  should  it  not 
accept  this  charge  if  tendered?  All  that  can  be  said  in  reply  to  this 
view  is  that  the  state  legislatures  cannot  surrender  this  power  if  they 
would,  and  that  the  Federal  Government,  however  much  it  might 
feel  inclined  to  do  so,  cannot  accept  such  surrender.  It  is  just  as 
little  possible  for  the  states  to  do  this  as  it  is  possible  for  them  to 
enlarge  the  maritime  jurisdiction  of  the  United  States.10  The  only 
legitimate  method  of  accomplishing  such  a  result  would  be  an  amend¬ 
ment  to  the  Constitution  made  in  accordance  with  the  provisions  of 
that  instrument. 

It  has  also  been  argued  that  the  Federal  Government  might  pass 
quarantine  laws  controlling  the  police  powers  of  the  different  states 
in  that  respect  by  the  exercise  of  the  power  vested  in  it  under  what  is 
loosely  called  “the  general  welfare  clause,”* 11  but  the  most  superficial 
view  goes  to  show  that  this  clause  has  reference  only  to  the  exercise 
of  the  taxing  power  for  the  purpose  of  paying  the  debts,  providing 
for  the  common  defense,  and  promoting  the  general  welfare  of  the 
United  States  within  the  scope  and  limit  of  the  taxing  power,  at 
most  within  the  scope  and  limit  of  the  Constitution  itself. 

It  has  also  been  said  that  quarantine  laws  are  in  effect  inspection 
laws,  and  that  Congress  was  specially  granted  the  power  to  revise 
and  control  all  state  inspection  laws.12  The  premises  on  which  this 
reasoning  is  based  are  not  sound.  Inspection  laws  have  exclusive 
reference  to  personal  property,  and  quarantine  laws  are  not  in  effect 
inspection  laws.  This  contention  has  been  effectively  disposed  of  by 
a  number  of  decisions.13 

It  must  be  admitted  that,  in  the  absence  of  an  amendment  to  the 
Constitution,  Congress  has  no  power  to  deal  directly  with  what  is 
properly  intrastate  and  strictly  local  quarantine,  and,  for  many 
reasons,  it  is  well  that  such  is  the  case. 

Has  not  Congress,  it  is  asked,  exclusive  control  over  quarantine  in 
so  far  as  it  affects  and  necessarily  controls  and  regulates  trade  with 
foreign  countries  and  commerce  among  the  states?  If  it  has,  would 
not  the  legitimate  exercise  of  such  power  be  constitutional,  even 
though  state  quarantine  laws  should  be  affected  by  the  natural  but 
indirect  consequences  of  Congressional  legislation  within  the  scope 
of  the  commerce  clause  of  the  Constitution? 

Tn  order  to  answer  this  question  we  must  look  to  the  commerce 

10  The  Steamboat  Orleans  v.  Phoebus,  n  Pet.  175,  183.  See  also  Roach  v.  Chapman, 
22  How.  129,  132. 

11  U.  S.  Constitution,  Art.  I,  Sec.  8. 

12  U.  S.  Constitution,  Art.  I,  Sec.  10,  cl.  2. 

13  People  v.  Compagnie  Generate  Transatlantique,  107  U.  S.  59,  61;  Turner  v.  Mary¬ 
land,  107  U.  S.  38,  51-55,  giving  a  list  of  inspection  laws  passed  by  the  different  States; 
Gibbons  v.  Ogden.  9  Wheat.  1,  119,  203. 


—  5  — 


clause  of  the  Constitution  and  to  the  interpretation  as  given  to  it  by 
the  ultimate  judicial  authority  on  all  questions  of  interstate  com¬ 
merce,  the  Supreme  Court  of  the  United  States.  The  decisions 
under  this  head  have  been  far  from  uniform,  and  it  is  admittedly 
impossible  to  reconcile  them  either  in  their  reasoning  or  in  their 
results.14  The  line  of  separation  between  the  powers  of  the  states 
and  the  power  of  Congress  over  interstate  commerce  is  not  by  any 
means  clear  and  distinct,  and  the  Supreme  Court  itself  has  declined 
to  fix  what  it  has  called  an  arbitrary  line  of  demarcation.  “It  is  far 
better/’  said  the  Court  on  one  occasion,  “to  leave  a  matter  of  such 
delicacy  to  be  settled  in  each  case  upon  a  view  of  the  particular 
rights  involved.”15. 

As  a  matter  of  fact,  the  power  of  Congress  over  interstate  com¬ 
merce  was  for  a  long  time  held  not  to  be  exclusive.  It  was,  however, 
admitted  at  all  times  to  be  a  power  far-reaching  and  incalculable  in 
its  possible  effects,  even  before  the  adoption  of  the  Constitution,  as 
was  shown  by  the  modifications  of  the  commerce  clause  proposed  by 
Massachusetts,  New  York,  Virginia,  and  North  Carolina.16  As  to  the 
exclusiveness  of  the  power  of  Congress  to  regulate  interstate  com¬ 
merce  there  was  difference  of  opinion  that  for  a  long  time  fairly 
paralyzed  the  action  of  the  Supreme  Court.  Referring  to  the  deci¬ 
sion  in  New  York  v.  Miln ,17  in  which  Justice  Story  had  given  the 
only  dissenting  opinion,  Justice  S wayne  said:  “In  the  discussion 
of  the  case,  however,  by  the  judges,  the  nature  and  exclusiveness  of 
the  power  in  Congress  to  regulate  commerce  was  much  considered. 
There  was  a  divided  mind  among  us  about  it.  Four  of  the  court 
being  of  the  opinion  that,  according  to  the  Constitution  and  the 
decisions  of  this  court  in  Gibbons  v.  Ogden  and  in  Brown  v.  Mary¬ 
land,  the  power  in  Congress  to  regulate  commerce  was  exclusive. 
Three  of  them  thought  otherwise.  And  to  this  state  of  the  court  is 
owing  the  disclaimer  in  the  opinion,  already  mentioned  by  me,  that 
>  this  exclusiveness  of  the  power  to  regulate  commerce  was  not  in  the 
case  a  point  for  examination.”18 

Ten  years  after  the  decision  in  New  York  v.  Miln  this  question 
came  up  again  in  the  License  Cases,19  and  the  decision  was  unani¬ 
mously  in  favor  of  the  concurrent  power  of  the  states  to  regulate 

14  Covington,  etc.  Bridge  Co.  v.  Kentucky,  154  U.  S.  204;  in  re  Rahrer,  140  U.  S.  545, 
562;  Leloup  v.  Mobile,  127  U.  S.  640,  648;  Fargo  v.  Michigan,  121  U.  S.  230,  240. 

15  Hall  v.  DeCuir,  95  U.  S.  485,  488;  quoted  with  approval  in  Wabash,  etc.  R.  Co.  v. 
Illinois,  1 18  U.  S.  SS7,  571. 

16  See  U.  S.  v.  Brigantine  William,  2  Hall’s  Am.  Law  Journal,  255. 

17  1 1  Pet.  102,  152. 

18  The  Passenger  Cases,  7  How.  430  and  431.  Compare  Chief  Justice  Taney’s  state¬ 
ment,  ibid.  pp.  487-490. 

19  s  How.  504. 


—  6  — 


interstate  commerce  in  all  matters  with  which  Congress  had  not 
dealt  by  way  of  national  legislation.  In  this  case  state  quaran¬ 
tine  laws  were  admitted  to  be  regulations  of  foreign  com¬ 
merce,  so  far  as  they  dealt  with  such  commerce  in  the  ports  and 
harbors  of  the  state ;  but  such  regulation  of  foreign  and  interstate 
commerce  by  way  of  quarantine  laws  was  justified  under  the  con¬ 
current  power  of  the  states.  Referring  to  these  state  laws,  Chief 
Justice  Taney  said:  “Yet  all  of  these  health  and  quarantine  laws 
are  necessarily,  in  some  degree,  regulations  of  foreign  commerce  in 
the  ports  and  harbors  of  the  state.  They  subject  the  ship,  and  cargo, 
and  crew  to  the  inspection  of  a  health  officer  appointed  by  the  state ; 
they  prevent  the  crew  and  cargo  from  landing  until  the  inspection  is 
made,  and  destroy  the  cargo  if  deemed  dangerous  to  health.  And 
during  all  this  time  the  vessel  is  detained  at  the  place  selected  for  the 
quarantine  ground  by  the  state  authority.  The  expenses  of  these 
precautionary  measures  are  absolutely,  and  I  believe  universally, 
charged  upon  the  master,  the  owner,  or  the  ship,  and  the  amount 
regulated  by  the  state  law,  and  not  by  Congress.  Now,  so  far  as 
these  laws  interfere  with  shipping,  navigation,  or  foreign  commerce, 
or  impose  burdens  upon  either  of  them,  they  are  unquestionably 
regulations  of  commerce.”20. 

The  License  Cases,  however,  do  not  represent  the  law  of  to-day. 
It  has  since  been  held  that  the  power  over  interstate  commerce  is 
exclusively  vested  in  Congress ;  that  the  power  of  the  states  is  not  in 
any  proper  sense  concurrent;  that  where  the  subject  on  which  Con¬ 
gress  can  act  under  its  commercial  power  is  strictly  local  in  its 
nature  and  sphere  of  operation — such  as  harbor  pilotage,  the  im¬ 
provement  of  ports,  the  establishment  of  beacons  and  buoys,  the 
erection  of  wharves,  piers,  bridges,  etc. — and  can  properly  be  regu¬ 
lated  only  by  special  provisions  adapted  to  the  localities  in  question, 
the  state  can  act  until  Congress  interferes;  but  that  where  the  subject 
is  national  in  its  character  and  admits  and  requires  uniformity  of  reg¬ 
ulation,  affecting  alike  all  the  states,  such  as  the  transportation  of 
passengers  and  goods  between  the  states,  for  instance,  Congress 
alone  can  act  upon  it  and  provide  the  needed  regulation.  The  ab¬ 
sence  of  any  law  of  Congress  on  a  subject  of  this  nature  is  equivalent 
to  its  declaration  that  commerce  in  this  matter  shall  be  left  free  and 
untrammeled.21  In  the  absence  of  Congressional  legislation  it  is  left 


20  s  How.  504,  581. 

21  Leisy  v.  Hardin,  135  U.  S.  100;  quoting  County  of  Mobile  v.  Kimball,  102  U.  S. 
691;  Brown  v.  Houston,  114  U.  S.  622;  Wabash,  St.  Louis,  etc.  Ry.  v.  Illinois,  118  U.  S. 
557;  Robbins  v.  Shelby  Taxing  District,  120  U.  S.  489;  Bowman  v.  Chicago,  etc.  Ry.  Co., 
125  U.  S.  465.  The  License  Cases,  so  far  as  they  rested  on  the  view  that  the  law  of  a 
state  regulating  interstate  commerce  could  be  valid  because  Congress  had  made  no  regula¬ 
tion  on  the  subject  in  question,  were  declared  distinctly  overthrown.  Ibid.  p.  118. 


—  7  — 


to  the  courts  to  determine  when  state  action  does,  or  does  not. 
amount  to  a  regulation  of  interstate  commerce  within  the  above  rule 
and  “when  that  is  determined  controversy  is  at  an  end.”22  This,  it 
seems,  is  a  fair  statement  of  the  law  as  it  stands  to-day. 

If  quarantine  against  foreign  nations  and  between  the  states  them¬ 
selves  involves,  of  necessity,  a  regulation  pro  tanto  of  commerce  be¬ 
tween  them — and  who  can  seriously  doubt  it — and  if  quarantine 
against  such  dread  diseases  as  yellow  fever,  cholera,  and  the  bubonic 
plague  is  essentially  a  national  measure  for  the  protection  of 
the  whole  country  and  not  merely  a  local  matter  of  no  concern 
to  the  people  except  those  residing  in  the  infected  port  or 
state,  it  would  follow,  in  the  present  state  of  the  law,  and  altogether 
apart  from  the  difficulties  inherent  in  separate  and  unconnected  state 
action,  that  the  states  cannot  safely  legislate  in  this  matter ;  and  that 
if  there  is  to  be  any  satisfactory  regulation  of  interstate  commerce 
with  a  view  to  meeting  the  inevitable  dislocation  of  trade  in  a  time  of 
general  panic  incident  to  the  sudden  appearance  of  infectious  diseases 
of  this  nature,  Congress  is  bound  to  deal  with  this  aspect  of  the  ques¬ 
tion,  not  merely  because  the  states  cannot  effectively  do  it,  but  be¬ 
cause  such  regulation  is  an  imperative  necessity  for  the  entire  nation, 
North  and  South,  and  in  the  interest  not  only  of  interstate  commerce 
itself  but  also,  incidentally,  of  the  national  health. 

That  quarantine  regulations  of  this  nature  are  in  effect  regulations 
of  commerce  and,  so  far,  national  in  their  nature  seems  difficult  to 
deny.  Chief  Justice  Taney’s  statement  in  the  Passenger  Cases 
seems  pertinent  to  this  aspect  of  the  case.  “Living  as  we  do,”  he 
said,  “under  a  common  government,  charged  with  the  great  concerns 
of  the  whole  Union,  every  citizen  of  the  United  States  from  the  most 
remote  states  or  territories,  is  entitled  to  free  access,  not  only  to  the 
principal  departments  established  at  Washington,  but  also  to  its 
judicial  tribunals,  and  public  offices  in  every  state  of  the  Union. 
*  *  *  For  all  the  great  purposes  for  which  the  Federal  Govern¬ 

ment  was  formed  we  are  one  people,  with  one  common  country.  We 
are  all  citizens  of  the  United  States,  and  as  members  of  the  same 
community  must  have  the  right  to  pass  and  repass  through  every 
part  of  it  without  interruption  as  freely  as  in  our  own  states.”23  In 
Crandall  v.  Nevada  24  there  was  question  only  of  a  small  capitation 
tax  of  one  dollar  upon  every  person  leaving  the  state  by  railroad, 
stage  coach  or  other  vehicle,  payable  not  directly  by  the  traveler,  but 

22  A  summary  of  24  cases  decided  in  the  United  States  Supreme  Court,  illustrating 
this  point  in  the  opinion  of  Chief  Justice  Fuller,  speaking  for  the  Court,  is  given  in 
Leisy  v.  Hardin,  135  U.  S.  100,  119  et  seq. 

23  The  Passenger  Cases,  7  How.  283,  492. 

24  6  Wall.  35,  48. 


0 


—  8  — 


by  the  persons  engaged  in  the  business  of  transportation  involving 
no  appreciable  loss  of  time  to  the  passengers  in  question  as  the  tax 
was  evidently  paid  with  the  fare.  Contrast  this  with  the  delay  of  the 
quarantine  and  detention  camps  and  the  heavy  losses  connected  there¬ 
with,  entirely  apart  from  the  interference  with  the  commerce  between 
the  states  themselves.  It  was  well  said  in  Morgan’s  Steamship  Co.  v. 
Louisiana  Board  of  Health 25  that  “quarantine  laws  belong  to  that 
class  of  state  legislation  which,  whether  passed  with  the  intent  to 
regulate  commerce  or  not,  must  be  admitted  to  have  that  effect,”  and 
it  was  also  conceded,  in  the  same  case,  26  that  “whenever  Congress 
shall  undertake  to  provide  for  the  commercial  cities  of  the  United 
States  a  general  system  of  quarantine,  or  shall  confide  the  execution 
of  the  details  of  such  a  system  to  a  National  Board  of  Health,  or  to 
local  boards,  as  may  be  found  most  convenient,  all  state  laws  on  the 
subject  will  be  abrogated,  at  least  so  far  as  the  two  are  inconsistent.” 
In  Missouri,  etc.,  Ry.  Co.  v.  Haber 27  it  was  maintained  that  a  state 
statute,  although  enacted  in  pursuance  of  a  power  not  surrendered  to 
the  general  government,  must  in  the  execution  of  its  provisions  yield, 
in  case  of  conflict,  to  a  statute  constitutionally  enacted  under  au¬ 
thority  conferred  upon  congress;  and  this  without  regard  to  the 
source  of  the  power  whence  the  state  legislature  derived  its  enact¬ 
ment.  It  must  be  admitted  that  when  two  such  laws  come  into  con¬ 
flict  they  do  not  affect  each  other  “like  equal  opposing  powers,” 
simply  because  the  Constitution  is  not  only  itself  supreme,  but  has 
provided  also  for  the  supremacy  of  all  laws  made  in  pursuance  of  it. 
In  other  words,  state  laws  dealing  with  quarantine  and  inconsistent 
with  Congressional  action  regulating  foreign  and  interstate  com¬ 
merce  along  quarantine  lines  with  a  view  to  protecting  the  national 
commerce  and  also  the  national  health,  would  be  superseded  by  rea¬ 
son  of  the  presence  of  this  higher  power  given  to  the  United  States 
Government  by  the  people  of  the  United  States. 

That  the  power  of  Congress  to  regulate  commerce  may  be  used  by 
it  not  only  for  the  advancement  of  commerce  but  also  for  the  pro¬ 
motion  of  other  objects  of  national  concern,  even  to  the  partial  or 
total  destruction  of  commerce  itself,  as  in  the  days  of  the  Embargo 
Act,  cannot  easily  be  doubted.  The  power  has  certainly  been  so  used 
in  the  past,  although  its  exercise  to  this  extent,  while  still  constitu¬ 
tional,  represents  an  extreme  that  could  be  justified  only  by  the 
exigencies  of  a  national  crisis  such  as  existed  in  the  early  days  of  the 
Republic.28 


25  1 18  U.  S.  455,  465. 

26  Ibid.  p.  464,  quoted  with  approval  in  Gulf,  etc.  Ry.  Co.  v.  Hefley,  158  U.  S.  98,  104. 

27  169  U.  S.  613. 

28  United  States  v.  Brigantine  William,  2  Hall’s  Am.  Law  Journal  255. 


—  9  — 


If  Congress  does  not  regulate  the  movements  of  foreign  and  inter¬ 
state  commerce  providing  laws  by  which  it  is  to  be  governed  in  times 
of  threatened  infection,  the  states  directly  affected  by  the  danger  will 
naturally  do  as  they  have  always  done,  that  is,  regulate  it  rapidly, 
hurriedly,  in  their  own  way,  and  with  a  view  to  their  own  interests, 
with  the  legislative  mind  more  or  less  affected  by  the  general  panic. 
It  is  then,  when  the  mischief  is  done,  left  to  the  slow  action  of  the 
Federal  Courts  to  determine  whether  the  states  encroached  upon  the 
power  of  Congress  over  interstate  and  foreign  commerce  or  whether 
they  kept  within  the  scope  of  that  local  power  that  is  admitted  to  be 
theirs.  The  degree  of  legislative  or  political  discretion  resting  with 
the  state  legislatures  will  then,  it  is  to  be  feared,  be  determined  by  the 
narrower  rules  of  legal  discretion,  and  conflicts  will  arise  that  would 
not  have  appeared  had  Congress  itself  acted  in  time.  Discretio  est 
discernere,  per  legem ,  quid  sit  justum ,  says  Coke;  and  legal  discre¬ 
tion  is  thus  at  once  shown  to  be  limited  indeed  when  compared 
with  that  legislative  and  political  discretion  that  Congress  is  called 
upon  to  exercise  and  which  “embraces,  combines  and  considers  all 
circumstances,  events,  objects,  foreign  or  domestic,  that  can  affect 
the  national  interests  *  *  *  surveying  the  vast  concerns  com¬ 

mitted  to  its  trust.”29. 

This  leads  to  the  most  important  aspect  of  the  question  and  to  what 
seems  a  conclusive  argument  in  favor  of  Congressional  action. 
Whether  the  regulation  of  quarantine  within  the  scope  of  the  inter¬ 
state  commerce  clause  is  a  national  question  is  really  not  a  question 
for  the  courts  at  all,  but  one  to  be  determined  by  Congress  in  the 
fair  exercise  of  the  legislative  and  political  discretion  entrusted  to  it 
by  the  people  of  the  United  States  under  the  law  of  the  land.  In  this 
respect  we  cannot  do  better  than  give  the  ipsissima  verba  of  Prof. 
James  Bradley  Thayer,  a  great  and  sound  teacher  of  the  law,  whose 
departure  has  been  a  loss  to  the  country  not  to  be  forgotten  for 
decades  yet  to  come.  Lengthy  as  the  quotation  may  seem,  it  is 
wholly  pertinent ;  and  we  are  happy  to  think  that,  in  this  way, 
“though  dead,  he  yet  speaketh”  to  a  living  issue  of  the  present  day. 
“Now  the  question,”  he  says,  “whether  or  not  a  given  subject  admits 
of  only  one  uniform  system  or  plan  of  regulation  is  primarily  a  legis¬ 
lative  question,  not  a  judicial  one.  For  it  involves  a  consideration 
of  what  on  practical  grounds,  is  expedient,  possible,  or  desirable ;  and 
whether,  being  so  at  one  time  or  place,  it  is  so  at  another:  as  in  the 
case  of  quarantine  and  pilotage  laws,  and  laws  regulating  the  bring¬ 
ing  in  and  sale  of  particular  articles,  such  as  intoxicating  liquors  or 
opium  *  *  *  *  *  It  is  not  in  the  language  itself  of  the  clause 


29  See  the  same  case. 


—  10  — 


of  the  Constitution  now  in  question  [the  commerce  clause],  or  in  any 
necessary  construction  of  it,  that  any  requirement  of  uniformity  is 
found  in  any  case  whatever.  That  can  only  be  declared  necessary, 
in  any  given  case,  as  being  the  determination  of  some  one’s  practical 
judgment.  The  question,  then,  appears  to  be  a  legislative  one;  it  is 
for  Congress  and  not  for  the  courts — except,  indeed,  in  the  sense  that 
the  courts  may  control  a  legislative  decision,  so  far  as  to  keep  it 
within  the  bounds  of  reason,  of  rational  opinion.  If  this  be  so,  then 
no  judicial  determination  of  the  question  can  stand  against  a  reason¬ 
able  enactment  of  Congress  to  the  contrary ;  such  for  example,  as  was 
made  in  the  ‘Wilson  Bill/  by  which  a  determination  of  the  Court  in 
Leisy  v.  Hardin  was  superseded.  *  *  *  *  *  It  WOuld  seem  to 

follow  that  the  courts  should  abstain  from  interference,  except  in 
cases  so  clear  that  the  legislature  cannot  legislatively  supersede  its 
determinations ;  for  the  fact  that  the  legislature  may  do  this,  in  any 
given  case,  shows  plainly  that  the  question  is  legislative  and  not 
judicial.”30. 

It  is  indeed  not  well  for  Congress  to  wait  with  the  passage  of  a 
national  quarantine  law  until  anarchy  again,  as  it  did  last  summer, 
threatens  the  commercial  relations  of  the  states.  Let  Congress  pass 
a  conservative  but  effective  law  embracing  in  its  beneficent  operation 
our  entire  national  boundary  line,  and  land  frontier  as  well  as  coast. 
We  are,  all  of  us,  deeply  concerned  in  the  integrity  and  maintenance 
of  this  line  as  a  barrier  impassable  to  every  foe  of  national  life. 

W.  E.  Walz. 

University  of  Maine  School  of  Law. 


30  2  Thayer’s  Cas.  on  Constitutional  Law,  note  on  p.  2190. 


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